ARTURO HERNANDEZ LIMON v. DONATA MISIUTA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ARTURO HERNANDEZ LIMON,

Plaintiff-Appellant,

v.

DONATA MISIUTA d/b/a PASSAIC 585

LLC and MARKUS TECH CO. INC.,

Defendants-Respondents,

and

DONATA MISIUTA d/b/a PASSAIC 585

LLC,

Defendant/Third-Party

Plaintiff-Respondent,

v.

MARKUS TECH CO. INC.,

Defendant/Third-Party

Defendant-Respondent,

and

ASTOR REALTY CORP., HOME LIQUORS

and PSE&G,

Third-Party Defendants.

_______________________________________

November 4, 2016

Argued July 19, 2016 Decided

Before Judges Messano and Suter.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No.

L-4588-12.

William Pollack argued the cause for appellant.

Alberico De Pierro argued the cause for respondent Donata Misiuta d/b/a Passaic 585 LLC (De Pierro Radding, attorneys;

Mr. De Pierro on the brief).

AnnMarie Flores argued the cause for respondent Markus Tech Co., Inc. (Gage Fiore, attorneys; Ms. Flores on the brief).

PER CURIAM

Plaintiff Arturo Hernandez Limon (Limon) appeals two summary judgment orders that dismissed his personal injury complaint against defendants Donata Misiuta d/b/a Passaic 585 LLC (Passaic 585) and Markus Tech Co., Inc. (Markus Tech), and the denial of reconsideration. We affirm.

I.

On February 7, 2012, at about 8:15 p.m., Limon was riding his bicycle on Main Avenue in Passaic on his way to Bible study. As he reached the area near his destination, he went up a driveway apron onto the sidewalk and started to go around scaffolding that was erected on the sidewalk in front of a vacant commercial building. He did not see a two-inch deep depression in the sidewalk that was two-feet wide and six-feet long, and upon encountering this depression, was thrown from his bicycle, sustaining serious injuries.

The vacant commercial building located at 585 Main Avenue was owned by Passaic 585. Markus Tech, a company owned by Mark Misiuta, contracted with Passaic 585 to perform masonry work on the fa ade of the building and put up the scaffolding. Mark Misiuta also was the majority member of Passaic 585 and his daughter, Donata Misiuta, was both the other member of and the registered agent for Passaic 585.

There is no longer any question in this case that the two-inch depression in the public sidewalk that Limon says caused his accident was not on property owned by Passaic 585, nor was it in front of 585 Main Avenue. Rather, Limon acknowledges that the depression was in the sidewalk located in front of 589 Main Avenue, a commercial property owned by third-party defendant Astor Realty Corp. and leased to third-party defendant Home Liquors. We assume, as did the trial judge, that at the time of the accident, neither the street light or lights on the scaffolding were on, and there were no warning signs.

It is also not disputed that Markus Tech repaired the sidewalk when the scaffolding was taken down, after Limon's accident. Astor and Home Liquors did not respond to Misiuta's request to make the repairs. Markus Tech made them because, as Mark Misiuta explained, "as a human, I didn't want nobody get hurt."

In November 2012, Limon filed a personal injury complaint for damages against Donata Misiuta d/b/a Passaic 585, asserting liability for the negligent maintenance of the "sidewalk located directly in front" of 585 Main Avenue. As discovery progressed, the complaint was amended to add other parties as direct defendants. By 2014, when defendants Markus Tech and Passaic 585 filed motions for summary judgment to dismiss the fourth amended complaint, the other direct defendants either had been voluntarily dismissed (PSE&G) or had been granted summary judgment in unopposed motions (Verizon; J. Fletcher Creamer).1

Passaic 585 requested dismissal of the fourth-party complaint because Limon did not dispute that the depression was located in the sidewalk in front of 589 Main Avenue, not 585 Main. Markus Tech requested dismissal because Limon did not prove the scaffolding contributed to the accident.

The trial judge granted summary judgment to the defendants. He reasoned there was no dispute about the location of the depression in front of 589 Main Avenue, and no evidence that either defendant created the depression or maintained the area where it was located prior to the accident, or that the lack of lighting or warning signs on the scaffolding was a cause of Limon's accident. It was dark when the accident happened, ruling out the possibility that a shadow from the scaffolding contributed to the accident. The judge concluded that the subsequent repair of the depression by Markus Tech was not admissible under N.J.R.E. 407, and he did not rely on it in deciding the summary judgment motions.

Limon supplemented the record with his certification about the lighting conditions in his motion for reconsideration, but because Limon's expert did not "tie in the lack of lighting to this incident," Limon had "no proof the scaffolding contributed to the accident." Limon's request for reconsideration was denied.

Limon contends on appeal that the adequacy of the lighting on the scaffolding was disputed, Markus Tech and Passaic 585 had knowledge about the dangerous condition, the trial court incorrectly applied the law regarding landowner liability, and Markus Tech's subsequent repair of the depression showed control sufficient to subject it to liability.

II.

We review a summary judgment decision using the same standards that govern the trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). Thus, we consider "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp., Inc. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R.4:46-2(c); Brill, supra, 142 N.J.at 540.

A.

The question before us is whether to expand the liability of a commercial landowner for a dangerous condition in a public sidewalk located in front of a neighboring commercial property. We decline to do so. We agree with the trial court that, on this record, the commercial landowner had no duty to repair, or to provide warning of, or lighting for, the dangerous condition of the sidewalk in front of the neighboring commercial property.

The material facts are not disputed, but to analyze them we first address the established legal principles that apply to commercial property owners for liability arising from injuries caused by a defective condition of an abutting public sidewalk. In Stewart v. 104 Wallace Street, Inc., 87 N.J.146, 150 (1981), the Supreme Court held that "[c]ommercial property owners are henceforth liable for injuries on the sidewalks abutting their property that are caused by their negligent failure to maintain the sidewalks in reasonably good condition." The plaintiff in Stewartwalked out of a tavern, went a short distance and fell on the dilapidated sidewalk in front of a vacant lot. Ibid. Although the complaint against the owner of the vacant lot initially was dismissed, the Court reversed the dismissal, finding a duty by the commercial property owner to maintain the sidewalk. Id.at 157. The Court limited the duty to maintain abutting sidewalks "to owners of commercial property". Id.at 159. This duty "flows from the economic benefit that a commercial landowner receives from the abutting sidewalk and from the landowner's ability to control the risk of injury." Kuzmicz v. Ivy Hill Park Apts., 147 N.J.510, 518 (1997).

A commercial "landowner's liability may extend beyond the premises for activities that directly benefit the landowner," such as crossing a public street or public way. Ibid. In Warrington v. Bird, 204 N.J. Super.611, 617 (1985), certif. denied, 103 N.J.473 (1986), a restaurant that provided parking across the street had a duty to its patrons to provide safe passage. SeealsoMulraney v. Auletto's Catering, 293 N.J. Super.315 (App. Div. 1996), certif. denied, 147 N.J.263 (1996) (holding caterer liable to a business invitee crossing the county highway).

However, a commercial landowner has no liability for a tenant's injury that occurred on a pathway on an adjacent property if the business "provided its tenants with a safe exit to the public sidewalks." SeeKuzmicz, supra, 147 N.J.at 522-23 ("To impose a duty on a landlord for the safety of tenants while on property over which the landlord has no control and from which it derives no benefit would be unprecedented."). Similarly, a commercial property owner is not liable for an injury on a path through adjacent public property where a public sidewalk "provided 'easy access.'" Chimiente v. Adam Corp., 221 N.J. Super. 580, 583-84 (App. Div. 1987) ("Stewart. . . does not impose a duty upon commercial landowners to maintain contiguous lands owned by others simply because the public chooses to use the lands as a means of access to the commercial property.").

There was no factual dispute here that the two-inch depression was in the public sidewalk in front of the property next door to the defendant who was sued. There is simply no case supporting the notion that a commercial landlord is liable for a condition of the public sidewalk in front of another neighbor's property, especially where, as here, Passaic 585 derived no economic benefit from the use of the sidewalk for its vacant building.

The cases cited by Limon do not support the expansion of liability for commercial landowners. In Monaco v. Hartz Mountain Corp., 178 N.J.401 (2004), plaintiff worked in a building leased from defendant Hartz Mountain when a gust of wind dislodged a municipal sign, installed on a sidewalk that Hartz had built, and struck the plaintiff. Id.at 404-05. Plaintiff's engineering expert testified that an inspection of the sign would have revealed a defect. Id.at 405-06. On review, the Supreme Court acknowledged defendant had a duty under Stewartto maintain the sidewalk, but imposed liability based on defendant's duty to its invitees to exercise reasonable care in making inspections "of its own property and the abutting sidewalk." Id.at 418. Monacodid not expand the commercial property owner's liability to a sidewalk that was not part of or abutting its property. Id. at 414-18. The sign in Monacowas not on the neighboring property. Id.at 418.

In Bedell v. Saint Joseph's Carpenter Soc'y, 367 N.J. Super. 515 (App. Div. 2004), also cited by Limon, plaintiff was walking from the street to the sidewalk when he tripped on a tree root in a strip of grass between the two. Id.at 518. We found a duty existed on the part of the commercial landowner because, "[h]aving been provided the substantial benefit of easy access to its property, it is only fair that defendant be burdened with the duty to maintain the grassy strip in a reasonably safe condition so as not to present an unreasonable risk of harm." Id.at 525-26. Notably, the grassy strip in Bedellwas in front of the commercial property held liable, not in front of a neighbor. Id.at 518.

Our opinion in Bedellrecognized the evolution "from the common law methodology of premises liability . . . to a more flexible approach based on" considerations of fairness. Id.at 523. In Monaco, the Court reiterated that "whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all the circumstances in light of considerations of public policy." Monaco, supra, 178 N.J.at 418 (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J.426, 439 (1993) (citation omitted)). The Court explained that the "inquiry involves 'identifying, weighing and balancing several factors [including] the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed resolution.'" Ibid.(alteration in original) (quoting Hopkins, supra, 132 N.J.at 439).

Balancing those factors here, there was no commercial relationship between Limon and Passaic 585; Limon simply was riding his bicycle nearby. Limon acknowledged it was dark when he went onto the sidewalk as he neared his destination. There was no indication from the record that the driveway apron was common to the commercial properties or that Passaic 585 derived any economic benefit from the apron or the sidewalk. There is then no public interest in extending the liability to a commercial property owner who had no economic benefit from the public sidewalk in front of the neighboring business.

B.

We agree with the trial court that Limon did not show proof that the scaffolding contributed to the accident. First, we reject as unsupported in the law the notion that a commercial landowner has a duty to illuminate the property of their commercial neighbor even if there is an awareness of a dangerous condition. SeeKuzmicz, supra, 147 N.J.at 521 (holding that landlord's awareness of criminal activity on property used by its tenants to access a shopping center but which it did not own "does not suffice to impose liability on [landlord] for that activity[,] . . . [but] would transfer to an innocent property owner the duty to prevent criminal conduct that is more properly the responsibility of others"). More fundamentally, we agree with the trial court that Limon's expert fell far short of linking any condition of the scaffolding to the accident.

The standards to be used for appropriate illumination and signage, and whether those standards were breached, were issues for an expert. SeeBrenman v. Demello, 191 N.J.18, 32 (2007) (Expert testimony must, "(1) . . . concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony." (quoting State v. Torres, 183 N.J.554, 567-68 (2005))). The expert opinion must include an analysis of the facts and not merely provide unsupported conclusions. SeeCreanga v. Jardal, 185 N.J.345, 360 (2005) ("An expert's conclusion is considered to be a 'net opinion,' and thereby inadmissible, when it is a bare conclusion unsupported by factual evidence.") (citing Buckelew v. Grossbard, 87 N.J.512, 524 (1981)).

Here, there was no issue raised by Limon's expert that the placement or the construction of the scaffolding was a contributing cause of the accident. Limon's expert did discuss inadequate lighting, but that discussion was in the context of the scaffolding casting a shadow at dusk that might have obscured visibility. Limon admitted that it was dark, not dusk, when the accident happened. Limon's expert never opined that the scaffolding obscured the depression in the sidewalk any more than did the darkness itself. She did not say the lights on the scaffolding would have illuminated the condition. In granting summary judgment, the trial court correctly concluded that Limon's expert did not link the condition of the scaffolding, including its lack of illumination or signage, or its location, to the cause of Limon's accident.

C.

The subsequent repair of the two-inch depression in the sidewalk by Markus Tech does not alter our conclusions. Astor Realty's control of the subject property, and Passaic 585's lack of any control, was never a disputed fact prior to Limon's accident. Limon's use of the evidence of repair was intended to show negligence in maintaining the property that Passaic 585 had no duty to maintain. As such, the evidence of repair was a subsequent remedial measure and was not admissible under N.J.R.E.407. The trial court was correct not to consider it in the summary judgment decision.

Affirmed.

1 Passaic 585 filed a third-party complaint against Markus Tech for contribution and indemnification. Passaic 585 also filed an amended third-party complaint against three other parties who apparently did not file answers.